SJC: Sharing marijuana cigarette not a crime

Massachusetts’ highest court ruled today that sharing a marijuana cigarette isn’t a crime, but growing even small amounts of the drug is still illegal.

The Supreme Judicial Court released decisions in four cases that involved arrests made after voters in 2008 approved a law decriminalizing the possession of an ounce or less of marijuana.

In three of the cases, the courts found police searches and arrests violated the bounds of the relatively new law, which went into effect in January 2009. The American Civil Liberties Union of Massachusetts, which wrote an amicus brief in one of the cases, said the rulings brought much needed clarity.

“Everyone, and it seems including the courts, seems to be honing in on what the voters I think made clear in 2008, which is that they don’t want the police to be spending time, energy and resources prosecuting people for crimes that involve small amounts of marijuana,” said ACLU legal director Matthew Segal.

One of the cases involved a man who attended the annual pro-marijuana legalization rally “Hempfest” on Boston Common in 2010. Officers approached after they saw him passing around a marijuana cigarette with two friends, then searched his backpack after seeing a plastic bag containing marijuana sticking out his pocket. They found 10 small bags of marijuana. The total weight of all the marijuana was less than an ounce.

The state argued the officer’s arrest was justified because he had cause to believe the man was about to illegally distribute the marijuana.

But the court said sharing small amounts of marijuana can’t be considered distribution. And it said voters clearly didn’t pass the law solely to protect marijuana users who smoke alone, adding “particularly in light of the recognition that marijuana is often used in groups.”

The state tried and failed to make a similar argument about distribution in a second case, in which a state trooper searched a car at a Lynn state park in 2011 after finding five people inside smoking marijuana.

But the court also said the trooper’s search — which turned up an unregistered handgun — was illegal, because the group had less than an ounce of marijuana between them, and the officer had no right to look for additional contraband, as the state claimed.

The court upheld the police in one case, in which an Adams man was charged in 2010 after officers serving him a warrant found less than an ounce worth of marijuana plants openly growing in his closet.

A lower court judge agreed with the suspect that growing the marijuana was the same as possessing it and was no longer criminal. But the SJC ruled that state law considers cultivating marijuana a separate crime.